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Frederick Lee v. Northwestern University

May 24, 2012

FREDERICK LEE, PLAINTIFF,
v.
NORTHWESTERN UNIVERSITY, DEFENDANT.



The opinion of the court was delivered by: Charles P. Kocoras, District Judge

MEMORANDUM OPINION

This matter comes before the Court on Plaintiff Frederick Lee's ("Lee") and Defendant Northwestern University's ("Northwestern") cross-motions for summary judgment. For the reasons set forth below, Lee's motion for summary judgment on Counts I and II is denied, and Northwestern's cross-motion on these counts is granted. Lee's remaining claims are dismissed without prejudice.

BACKGROUND

Lee, a Chinese-American male, was employed by Northwestern as a police officer from September 2005 until he was terminated in October 2009. In April 2008, Lee complained of racist and derogatory remarks made by three fellow officers to Northwestern's Office of Equal Opportunity and Access (the "EOA Office"), a division of Northwestern's Human Resources Department ("HR"). Lee suggested that he would consider his complaint resolved if he received apologies from the alleged offenders and if Northwestern personnel were required to undergo discrimination sensitivity training. Each of the officers apologized, and the EOA Office conducted sensitivity training. Lee was not exposed to any racially offensive comments thereafter.

The Locker Room Incident

On August 18, 2009, Lee noticed that three pairs of his shoes were scattered throughout various parts of the locker room coach house. Lee believed that other officers had intentionally strewn his shoes around the locker room and that he was targeted because of his race. Lee reported this incident to his supervisors and also wrote a memo describing the incident to Commander Darren Davis ("Cdr. Davis") and Chief of Police Bruce Lewis ("Chief Lewis").

At a roll call meeting on August 25, 2009 (the "Roll Call Meeting"), Lee expressed his ire with the locker room incident and openly questioned whether Sergeant Steve Stoeckl ("Sgt. Stoeckl"), Officer Frank Walsh, ("Walsh"), or Officer David Kramarz ("Kramarz") were involved. During this meeting, Lee and Officer Kasia Smerdka ("Smerdka") raised their voices, and Sgt. Stoeckl told Lee to lower his voice. Sgt. Stoeckl prepared a report of the incident, in which he stated that no foul language was used, no discriminatory statements were made, and no threats were communicated. Two days later, Lee complained to Chief Lewis about the incident.

On August 28, 2009, Lee met with Leah Gidron ("Gidron"), an investigator in Northwestern's EOA Office. Lee indicated that he believed other officers were targeting him because of his race and that Kramarz wanted to harm him. During this meeting, Pamela Pirtle ("Pirtle"), the Director of Northwestern's EOA Office, overheard Lee yelling but soon realized that Lee's yelling was not directed at Gidron. Nevertheless, Pirtle reported the incident to Chief Lewis.

Gidron conducted an investigation into Lee's allegations and ultimately concluded that his complaints of discrimination were unsubstantiated. In her investigation report, Gidron recommended to Northwestern that Lee submit to confidential counseling to help him cope with his anger and distrust of his co-workers. Northwestern did not follow Gidron's recommendation, and Lee never received any confidential counseling.

On September 5, 2009, Lee sent an e-mail to the officers on his shift in which he expressed his displeasure with the way some of his colleagues had treated him. In this e-mail, Lee encouraged the recipients to maintain a professional and mutually respectful working environment and stated that he would not tolerate disrespect from his fellow officers. Chief Lewis stated that he believed that this e-mail communicated an implicit threat and posed a risk to the police department.

The Fitness-For-Duty Evaluation

On September 10, 2009, Chief Lewis issued Lee a letter from Deputy Chief Daniel McAleer ("Dep. McAleer"). The letter notified Lee that he was being placed on administrative leave and ordered Lee to submit for a fitness-for-duty evaluation ("FDE"). Dep. McAleer's letter cautioned Lee that failure to submit for an FDE would be considered insubordination and would result in disciplinary action. The letter also prohibited Lee from discussing the matter with other officers and supervisors. Lee was the only officer that Chief Lewis had ordered to submit to an FDE in his tenure as Chief of Police at Northwestern.

Dr. Friedman, an associate professor of clinical psychiatry and behavioral sciences at the Northwestern University's Feinberg School of Medicine, conducted Lee's FDE over three days. Dr. Friedman administered three psychological tests: the MMPI-2, the PAI, and the M-Pulse. Each of these tests contains a built-in validity scale to determine whether the test taker is being truthful in his answers. Lee's scores on the validity scales indicated that Lee was not answering the questions honestly and candidly. Dr. Friedman also observed that Lee was behaving defensively during the FDE. For example, Lee had been taking notes and "writing down everything that [Dr. Friedman] asked." Dr. Friedman testified that he had never encountered this behavior in any of the hundreds of FDEs that he had previously conducted in his thirty- year career. Additionally, Dr. Friedman noted that Lee showed significant reluctance to answer his questions and would only do so after considerable prodding.

Dr. Friedman ultimately concluded that Lee was "faking good," i.e., overstating positive traits beyond which is typically endorsed in an FDE, and therefore not fully cooperating with the administration of the tests. As a result, the test results were invalid and Dr. Friedman was unable to draw a conclusion as to whether Lee was fit for duty. Chief Lewis recommended that Lee be terminated for insubordination for failing to comply with the FDE, and his recommendation was approved on October 15, 2009. On October 20, 2009, Chief Lewis sent Lee notice of his termination.

Lee's Personal Affects

Lee kept several personal items in the locker room at the police station, including a laptop computer, personal audio recordings on compact discs ("CDs"), a weight set, personal journals, and a voice recorder. All of Lee's personal property was stored in his locker with the exception of the weight set, which was stored in a drawer elsewhere in the locker room. Sometime after he was placed on administrative leave, Lee attempted to contact Dep. McAleer to arrange a time for Lee to retrieve his property. Lee claims that Dep. McAleer denied his requests. On October 22, 2009, all of Lee's property was mailed to his residence except the barbell set. During the course of this litigation, Northwestern attempted to return the barbell set but Lee refused to accept it.

Cdr. Darren created an inventory of the property removed from Lee's locker, made copies and read several portions of Lee's journals and listened to some of the audio files on the CDs. Cdr. Darren delivered copies of these materials to Dr. Friedman without first consulting with Lee.

On September 23, 2011, Lee filed a six-count Third Amended Complaint alleging violations of Title VII of the Civil Rights Act of 1964 and multiple torts under Illinois law. Upon the completion of discovery, Lee and ...


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